Friday, July 31, 2009

Shortly after Friday's verdict in the Joel Tenenbaum case, I had the chance to speak with Dr. Donald Moran, one of the jurors who ordered the BU grad student to pay $675,000 for infringing 30 of the record labels' songs by uploading and "sharing" them on the KaZaA peer-to-peer network. Moran is a 40-ish physician, a specialist in internal medicine at a Cambridge hospital who also teaches at Harvard Medical School. He was reluctant to discuss the jury's deliberations in any detail, but was willing to share his impression of various of the players and issues. I can't say whether Moran's views are typical of the other jurors, but I found his impressions quite interesting.

On the jury deliberations:

We worked in a spirit of true compromise. We worked very well together. It wasn't easy to get to a number.... The jurors were very fair, very diligent, very careful. It gave me confidence we made the right decision.

On Joel Tenenbaum:

He was a very likable young man. It would be very interesting to talk to him personally.

What did he think of Tenenbaum's conduct? Did he find it morally culpable, or simply typical behavior of people in the defendant's generation?

There was an element of culpability. But I also recognize there are a lot of people in the same boat.

What does he think about the record labels' litigation campaign against individual peer-to-peer users?

We wish there was another way that all parties could be satisfied. But this is a business, and they have the right to enforce their rights.

Did Tenenbaum's admitted lying in written discovery responses and at his first deposition play a significant role in the jury's award of damages?

I don't think it had much impact. Our verdict was based on the evidence already provided. The plaintiffs' evidence was very comprehensive.

What was his impression of Tenenbaum counsel Charles Nesson?

He was very interesting. It would be fun to sit down and talk with him. There was a minefield of facts he had to negotiate. He approached it in the best way he could. He was very persuasive.

A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.

The verdict came down at late Friday afternoon after about three and a half hours of deliberation.

When asked about the size of the verdict, Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars that "it's a bankrupting award." He also felt things might have been different had they been allowed to argue fair use. "We were not allowed to speak to fairness," he told Ars. "I thought we had pretty damn good arguments on fair use."

"I'm disappointed, but not surprised, but I'm thankful that it wasn't much bigger, that it wasn't millions," Tenenbaum told Ars after the verdict was announced. We asked him if he regrets not settling earlier on in the process. "Ask me in a couple of months," Tenenbaum replied. He also told Ars that he doesn't have the ability to pay the judgment and said that he'd be filing for bankruptcy if the award stands. Although the jury found that he willfully infringed on the copyrights in question, Tenenbaum said he was "not displeased with the jury considering how the trial went."

What about the fact that the damages could have been much worse, as high as $4.5 million? "That to me sends a message that [the jury] considered [my] side legitimately," he replied. He was also evasive when asked if he regrets downloading music for free. "That's really a loaded question," he replied. "There are so many things that could have been different."

The RIAA was pleased with the verdict. "We are grateful for the jury’s service and their recognition of the impact of illegal downloading on the music community," the RIAA said in a statement. "We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning that’s what this case has been about. We only wish he had done so sooner rather than lie about his illegal behavior."

The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

And when he took the stand on Thursday, Tenenbaum admitted it all, including the fact that he had “lied” in his written discovery responses and at his first deposition in September 2008.

Tenenbaum’s admissions were so clear-cut, and so damning, that Judge Gertner—who had recruited Nesson to represent the formerly lawyer-less 25-year-old—took the basic issue of infringement away from the jury, determining that no reasonable jury could find for Tenenbaum on that issue. The jury of five men and five women, all white and all from the Boston suburbs, were left only to determine the issue of willfulness and damages.

Tenenbaum is only the second of approximately 18,000 individuals targeted by the labels to have gone to trial, and the second to lose. In June of this year, a Minnesota jury ordered Jammie Thomas-Rasset to pay $80,000 for infringing each of 24 songs, totaling $1.92 million. Last December, the labels announced that they were no longer initiating new cases against individual peer-to-peer users. However, they said they would see through to the end those cases already in the litigation pipeline. According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage.

The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum’s counsel, Harvard Law School professor, who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element.

Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.

Joel Tenenbaum is a “hardcore, habitual, long-term, persistent infringer, who knew what he was doing was wrong and did it anyway,” recording industry attorney Timothy Reynolds argued to the jury who will determine how much the 25-year-old grad student will have to pay for his admitted use of peer-to-peer software to obtain music for free.

But it is “hard to imagine an infringer who is lower on th[e] scale [of culpability] than Joel,” countered his counsel, Harvard Law School professor Charles Nesson. “Let the punishment fit the crime.”

And Nesson made a blatant play for jury nullification, urging the jury to award damages on only one song among the 30 Tenenbaum has admitted infringing. “If you don’t fill in any of those boxes” for damages, “that’s totally within your power.” The plaintiffs strenuously objected -- pleas for nullification are strictly forbidden -- and a clearly angered Judge Nancy Gertner agreed, reminding the jurors of their obligation to follow the law.

With liability already decided in plaintiffs’ favor in an early-morning order by Judge Gertner, the focus of the case turned to willfulness (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights") and damages. The two issues are closely related. Under Section 504(c) of the Copyright Act, the jury may award statutory damages of between $750 and $30,000 per infringed song in the case of “regular” or non-willful infringement. If, however, the jury finds Tenenbaum’s infringement to be willful, the maximum it may award jumps five-fold, to $150,000 per song.

“There is no issue as to liability. There is no issue as to liability,” Judge Gertner repeated for emphasis.

Given the finding of liability, the jury must award at least the minimum of $750 per work, or $22,500 total for the 30 songs at issue. The maximum potential award is $150,000 multiplied by 30, or $4.5 million. At the first Jammie Thomas-Rassset trial, the jury awarded $9,250 per song; at her retrial in June of this year, a different jury awarded $80,000 for each of 24 songs, totaling $1.92 million.

As they did in the two Thomas-Rasset trials, Plaintiffs did not ask the jury to award a specific amount of damages within the statutory range. “How much in damages should be awarded here is your job,” said Reynolds, “and we leave it in your good hands.”

Reynolds and Nesson painted starkly contrasting pictures of Tenenbaum, who is on his way toward a Ph.D. in physics at Boston University.

To Reynolds, Tenenbaum was a repeat miscreant, who started using Napster in 1999, turned to numerous other peer-to-peer services when the last one got shut down, and continued his infringement despite multiple warnings -- including at least one from his own father -- that he should stop. “Did he stop? Did he even consider it? Not at all… He actually increased both the size and scope of his infringement,” said Reynolds, of the Denver-based Holme, Roberts & Owen.

But Tenenbaum couldn’t stop himself, said Nesson. “Joel was addicted. He became addicted to free music with Napster.” And he never intended to make money from his infringement, or to harm copyright owners. “His purpose was completely personal. No maliciousness. No intent to injure.”

Nesson conceded that Tenenbaum may have saved a small amount of money by downloading songs for free instead of paying for them. But he strenuously denied that Tenenbaum’s distribution to others caused any harm to the plaintiffs, given that many others were likely sharing the same songs. “There were many, many copies of these songs available,” said Nesson. “The fact that one more become available doesn’t change anything.”

But Reynolds pointed out that Tenenbaum admitted being the initial “seeder” of at least one file, an unreleased Deftones song that he recorded off a television performance and made available on KaZaA, and then publicized its availability in a Deftones fan forum. It’s “inconceivable” that no one downloaded that song from Tenenbaum, said Reynolds.

Judge Gertner then instructed the jury, and at 1:43 p.m., the five men and five women, all white and all from Boston's suburbs, were sent to eat their lunch and deliberate.

The record label plaintiffs have won the Joel Tenenbaum case. Judge Nancy Gertner has reversed her ruling of last night, now granting the record label plaintiffs' Rule 50 motion on the issue of liability:

Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy)

This morning Tenenbaum may put on witnesses, the attorneys will conduct closing arguments, and Judge Gertner will instruct the jury. Deliberations (which will cover only willfulness and damages) could start mid-day.

Thursday, July 30, 2009

Late today Judge Gertner issued the following ruling on the plaintiffs' motion for a directed verdict under Rule 50:

Judge Nancy Gertner: Electronic ORDER entered with respect to Rule 50 motion: The Court will make required findings concerning copyright ownership, but leave all remaining issues -- infringement (reproduction and distribution), damages and willfulness -- for the jury, out of an abundance of caution. The Court does so in part because the statutory damages inquiry obliges the jury to consider some of the same issues as the infringement inquiry, i.e. the nature of the infringement. (Gertner, Nancy)

In other words, the jury will still decide the basic issue of whether Tenenbaum infringed the plaintiffs' copyrights (which he admitted today under oath), and whether he infringed willfully, which means infringed "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights." The jury will not have to decide copyright ownership (one of the two basic elements of an infringement claim); Tenenbaum doesn't dispute it.

Here's my recap of day four of the Joel Tenenbaum trial, cross-posted from Ars Technica:

Accused of sharing 30 songs on the Internet, Joel Tenenbaum today admitted his liability in a federal courtroom, then told the court he told a "lie" in his earlier sworn responses. The labels have moved for a directed verdict of copyright infringement, and look likely to get it.

***

“Joel Fights Back,” proclaims the website for Joel Tenenbaum, the Boston University grad student standing trial for copyright infringement this week in a federal courtroom. But today, when he took the stand at his closely watched copyright trial, he didn’t.

Instead, over and over, Tenenbaum admitted under oath that he used KaZaA, LimeWire, and other peer-to-peer software to download and distribute music to others unknown.

“This is me. I’m here to answer,” said Tenenbaum. “I used the computer. I uploaded and downloaded music. This is how it is. I did it,” he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

“Are you admitting liability for all 30 sound recordings” on which the record labels brought suit, asked the plaintiffs’ attorney Tim Reynolds.

“Yes,” said Tenenbaum.

Tenenbaum then admitted that he “lied” in his written discovery responses, the ones in which he denied responsibility.

“Why did you lie at that point?” asked Tenenbaum’s attorney, Harvard Law School professor Charles Nesson. “It was kind of something I rushed through,” responded Tenenbaum. “It’s what seemed the best response to give.” At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.

A directed verdict?

Given Tenenbaum’s clear-cut admissions, plus the other evidence linking the defendant to the alleged infringement, plaintiffs moved at the end of their presentation for a directed verdict in their favor under Federal Rule of Civil Procedure 50 on the issues of copyright ownership, liability, and willfulness. Judge Nancy Gertner gave every indication that she will grant the motion as to ownership and liability, taking away from the jury the basic issue of whether Tenenbaum infringed the plaintiffs’ copyrights.

“For all intents and purposes, the ownership and liability issues have been conceded,” she said, suggesting wilfullness was a closer call. Judge Gertner promised a ruling on all three issues Friday morning. UPDATE: Tonight Judge Gertner, "out of an abundance of caution," denied the plaintiffs' motion for a directed verdict on the issues of liability and wilfullness, leaving them to be decided by the jury. She did grant their motion as to copyright ownership, which Tenenbaum never disputed.

During Tenenbaum’s testimony, plaintiffs’ attorney Tim Reynolds walked Tenenbaum methodically through the evidence, extracting scores of one, two, and three-word admissions that he did exactly what plaintiffs have accused him of doing.

“You used KaZaA to download music, right?”

“You used LimeWire to get music without paying for it, right?”

“Your goal was to obtain the maximum amount of music with the minimum amount of wasted effort, right?”

“Yes.” “I did.” “Yes, I did,” Tenenbaum said calmly, over and over and over, in response to Reynolds’ questions.

Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder.

He admitted that he listened to his copies of all 30 songs he is accused of downloading and distributing—negating Nesson's suggestion that some of them were actually fake files, “spoofs” put on peer-to-peer networks by copyright owners to frustrate users trying to obtain music for free.

And Tenenbaum accepted all of the conclusions of plaintiffs’ computer forensics expert, Dr. Douglas Jacobson, as true. “I trust he’s a competent professional,” said Tenenbaum.

Under cross-examination by his own attorney, Tenenbaum was more expansive. He recounted his long-time love of music and growing up in a family where all members played an instrument. “They forced us to play piano,” he said of his parents.

And Tenenbaum insisted he never had any intent to harm the record labels, and certainly not the artists themselves, for whom he expressed great affection.

Tenenbaum smiled broadly as he recounted the joy of first encountering Napster: “It was great… It was like this giant library in front of you with all sorts of songs... It’s all up there... It’s like the Google of music... You have this list of songs, and you can get them really easily.”

Did he consider whether it was legal? “I guess it wasn’t foremost in my mind... Now I’m thinking a lot more about whether it’s illegal," he replied.

Plaintiffs wrap things up

After Tenenbaum left the stand in the early afternoon, plaintiffs called Ron Wilcox, an attorney and long-time digital music executive now at Warner Music Group, who guided the jurors through the industry’s efforts to sell music on the Internet, from the early days of MusicNet and Pressplay, through iTunes, and to what he sees as an all-digital future.

“Our total focus and attention is on” digital distribution, said Wilcox, who was called to counter the defense’s suggestion that Tenenbaum’s use of peer-to-peer was justified by the labels’ alleged failure to provide legal alternatives. “There’s no fear of technology,” said Wilcox, who spent 25 years at Sony Music before joining Warner early this year. But the digital marketers are “always in a position of chasing free.”

Rounding out the day was Warner Music attorney Silda Palerm, who spent less than ten minutes on the stand confirming WMG’s ownership of such songs as Green Day’s “Minority,” which was found in Tenenbaum’s KaZaA shared folder.

With that, plaintiffs rested their case.

Defendants have said they intend to call to the stand Tenenbaum’s mother and Dutch computer scientist Johan Pouwelse. But it is unclear what purpose either of these witnesses would serve, given the concessions made by the defense today. In any event, Tenenbaum’s attorneys said they would finish their presentation by mid-morning Friday. Then, following closing arguments and jury instructions, the five men and five women of the jury will be sent off to deliberate.

The only tough issue left for the jury to decide will be damages, which could range from $750 per work up to $30,000 per work, or up to $150,000 per work if they find that Tenenbaum’s infringement was willful. In yet another blow to the defense, Judge Gertner said she will instruct the jury that “willful infringement is that committed with knowledge of or ‘reckless disregard’ for the plaintiffs' copyrights,” rejecting a heightened standard urged by Tenenbaum that would have required a showing of Tenenbaum’s intent to profit commercially.

Wednesday, July 29, 2009

Here's my recap of day three of the Joel Tenenbaum trial, cross-posted from Ars Technica:

The second-ever P2P file-sharing case to go to trial has been anything but conventional, and today was no exception: one of Joel Tenenbaum's attorneys admitted in court that his client was liable for infringement. The real issue now appears to be the amount of damages.

***

Its been clear for some time that Joel Tenenbaum would face a steep uphill battle countering the record label plaintiffs' evidence that he infringed their rights in 30 sound recordings by downloading and distributing them over the KaZaA peer-to-peer network—but it was still jarring to hear one of his attorneys openly admit liability today in court.

This morning, one of Tenenbaum's own attorneys acknowledged—though outside the presence of the jury—that Tenenbaum is essentially defenseless on the issue of whether he committed copyright infringement. During a discussion about the admissibility of the past settlement discussions between Tenenbaum and the labels (normally precluded under Federal Rule of Evidence 408), Tenenbaum attorney Matthew Feinberg blurted out: "We’re admitting liability, your honor."

While in some ways not a surprise, given the state of the evidence, Feinberg’s admission was clear and rather stunning, coming as it did from the mouth of Tenenbaum's own advocate. The seemingly off-the-cuff remark did not constitute a formal throwing-in of the towel; the case will proceed, and liability will still be decided by the jury. But now it’s out in the open: this is really a trial about how much, not whether, Tenenbaum will have to pay.

A question of will

But the plaintiffs remain determined to show just how liable Tenenbaum, a 25-year-old graduate student in physics at Boston University, actually is. For that, they turned to Dr. Douglas Jacobson, an Iowa State University professor of electrical and computer engineering, who gave the jury a primer on IP addresses, peer-to-peer networks, KaZaA, and supernodes. Jacobson, who has served as an expert in several hundred of the music industry’s cases against individuals, sprinkled his testimony with folksy metaphors, one involving ads for puppies and kittens on grocery store bulletin boards, to illustrate concepts like data packets and metadata.

Jacobson opined that Tenenbaum’s computer had been used to download and distribute the 30 songs at issue in this case, and he also explained the results of his forensic examination of the Gateway computer Tenenbaum used at Goucher College and then BU (this is not the computer that MediaSentry says it detected sharing files on August 10, 2004, when Tenenbaum was at home in Providence, Rhode Island on summer break). This computer examination produced some of the most damning evidence against Tenenbaum, as it appears to show that he continued his use of peer-to-peer software to obtain and disseminate music even after he was contacted by the plaintiffs' lawyers in early 2005, then sued in August 2007.

Tenenbaum, opined Jacobson, installed LimeWire on his computer in February 2004 and installed a new version in February 2007. Tenenbaum was sharing files via LimeWire in February 2007, and "possibly as late as May of 2008," said Jacobson, explaining that he could not pinpoint the final date because certain registry files had been deleted from Tenenbaum’s computer. And about 250 files on that hard drive matched the file names in the KaZaA share folder detected by MediaSentry in August 2004.

This is important not just for liability (which the defense appears to have conceded), but for the issue of the "willfulness" of Tenenbaum’s conduct—which could have a dramatic impact on the amount of damages awarded by the jury. Statutory damages max out at $30,000 per work for "regular" infringement, but the upper limit increases to $150,000 per work if the jury finds that Tenenbaum willfully infringed. (Judge Gertner is keenly aware of how important the wilfullness issue is; last night she issued an order “requiring further argument on the question of how ‘willful infringement’ is defined.”)

Tenenbaum counsel Charles Nesson’s cross-examination of Jacobson was shockingly... conventional. He asked Jacobson about his compensation ($200/hour, with about 40-50 hours spent on this case) and the total volume of work he has done for the recording industry (about 300 expert reports)—standard questions intended to show that an expert’s opinions should be discounted because they were bought and paid for. (Similar questions were asked of Jacobson during the Thomas-Rasset trial earlier this year.)

On substance, Nesson zeroed in on the 25 files at issue for which MediaSentry downloaded only a small portion (including metadata)—but not the entire audio file. (MediaSentry downloaded the complete file only for five of the 30 songs at issue here, citing time and bandwidth limits).

Nesson suggested through his questioning that the 25 partial files might not actually represent song files, but instead "spoofs" released by copyright owners to frustrate peer-to-peer users. Jacobson countered that he is confident they were real song files, based on their associated metadata (which includes information including title, artist, album, file size, release group, etc.), and he testified that he cannot recall ever encountering a spoof in his years of work investigating allegations of copyright infringement. And, said a member of the plaintiffs' team, Tenenbaum testified that he listened to and enjoyed all 30 of the songs, which would seem to negate the possibility of any of them being fake files.

What sunk the majors?

Turning to the critical issue of harm, plaintiffs called their expert Stanley Liebowitz, an economics professor at the University of Texas at Dallas, who opined forcefully that file-sharing has harmed the market for recorded music. Liebowitz displayed a graph that showed the revenues from recorded music rising fairly steadily from 1973 until 1999, when they dropped dramatically and continued to fall through 2008, the last year for which he had data.

The cause of the sudden turn for the worse in 1999? Napster, testified Liebowitz. Recorded music revenues dropped from $18.5 billion in 1999 to $8.5 billion in 2008 (both in 2008 dollars). Liebowitz explained how he considered various explanations for the drop in revenue: overall economic conditions, change in prices, and consumer shifts in entertainment purchases away from music to DVDs and videogames. But, he said, the data simply didn’t support any of these explanations, leading him to conclude that the real culprit was consumers’ newfound ability to obtain music on the Internet without paying for it.

On cross, Nesson's interest in big theoretical questions returned. “What is property?” he asked to begin his examination. “Do you have a more pointed question?” retorted Judge Gertner, as she rested her face in her hands.

Nesson then asked Liebowitz when the music industry began to make money. Upon Liebowitz’s reference to the “Middle Ages,” Judge Gertner cut him off with, “This will be a very long trial if we’re going back to the Middle Ages.” To the relief of everyone in the courtroom, he skipped ahead to the 1970s.

Universal Music Group attorney JoAn Cho testified to her company’s ownership of copyright in 13 of the 30 sound recordings at issue in the case. As the song played in the courtroom, Cho identified the MediaSentry download of Nirvana’s “Come as you are” from “sublimeguy14@kazaa” as being the same one found on a legitimate CD. One of the younger members of the jury could be seen tapping his toe to the song, and Judge Gertner cracked a smile—though it was unclear whether she actually enjoyed the music or was simply thinking to herself, “Why in the world are we playing Nirvana in my courtroom?”

Feinberg handled the cross-examination of Cho—hardly among the plaintiffs’ most critical or controversial witnesses—and was surprisingly hostile. He attempted to grill her on UMG’s litigation strategy (which she said she played no role in formulating), but was shut down repeatedly by Judge Gertner, who several times announced “Sustained!” even before plaintiffs’ attorney Matthew Oppenheim had the chance to object—resulting in laughter from several jurors.

Tomorrow

Thursday’s session will begin with the conclusion of Nesson’s cross-examination of economist Liebowitz. Plaintiffs plan to call two attorney witnesses from Warner Music: Ron Wilcox, who will testify as to the music industry’s digital initiatives over the past decade, and Silda Palerm, who will confirm her company's ownership of copyright in songs including Green Day’s “Minority” and The Ramones' “The KKK Took my Baby Away.”

Plaintiffs will also call Tenenbaum to the stand, in what could be one of the most dramatic moments of the trial. And two more of Tenenbaum’s friends will appear by deposition, to rebut Tenenbaum’s suggestions that they had used KaZaA on his bedroom computer. One such friend, Antonio Franco, did that in a very brief live appearance this morning. “I spent a lot of time outdoors skateboarding,” rather than downloading music, said the fauxhawk-ed Franco. On cross, Nesson succeeded only in extracting Franco's concession that he had an “excellent 360 flip.”

The attorneys ended the day by assuring Judge Gertner that they remain on track to conclude their presentations and give the case to the jury on Friday.

Tuesday, July 28, 2009

What has been the biggest mistake by Joel Tenenbaum's defense team? Failing to depose a single witness? Angering the judge by recording conversations with the court and opposing counsel? Spending time on a quixotic and ultimately unsuccessful effort to have the case webcast, rather than focusing on trial preparation? Part-way through the trial, it's now clear to me that the biggest mistake was a different one: failing to secure an expert to testify as to actual damages, i.e., the harm caused by Tenenbaum's downloading and "sharing" of the 30 songs at issue in this case.

Tenenbaum's liability for copyright infringement is an all-but-foregone conclusion. He has admitted under oath at his depositions that he used KaZaA and other p2p software for years, even after he was served with the complaint in this case. And now he will be forced to acknowledge those admissions on the stand, before the jury. The pile of forensic evidence from MediaSentry, Cox, and plaintiffs' expert Dr. Jacobson is mere icing on the plaintiffs' cake.

So the real action is in damages. The jury will be instructed that, if they find for the record labels on liability, they may award statutory damages ranging from $750 to $30,000 per work, or up to $150,000 if they find Tenenbaum's infringement was willful. That's a minimum of $22,500, and a max of $4.5 million -- obviously a huge range. The jury will be permitted to consider various factors in determining where within that range the award should fall, including the amount of actual damages.

Actual damages in a case like this are difficult to prove -- which is precisely why the law allows for statutory damages. Proving actual damages requires hard-core economic and statistical analysis -- more than having a company employee testify: There's been lots of piracy, and lots of job losses. Therefore piracy caused the job losses. Q.E.D.

Plaintiffs have such economic analysis, from their expert, University of Texas at Dallas economist Stanley Liebowitz. Defendant has...nothing. Barely a week before trial, Tenenbaum suggested he intended to call as a witness Felix Oberholzer-Gee, a professor at Harvard Business School who has concluded there is no evidence that peer-to-peer use has harmed the recorded music industry. But Judge Gertner granted the plaintiffs' motion to exclude him, on the obvious grounds that he was disclosed more than three months after the expert deadline. (It was never even clear that Oberholzer-Gee had actually agreed to testify.)

To be sure, Liebowitz vigorously disputes Oberholzer-Gee's findings and conclusions. But if Team Tenenbaum had retained him in a timely fashion, they would have at least been able to put a little meat on the bones of their "no harm, no foul" argument, and given the jury a plausible reason to choose an award at the low end of the range. But without any economist taking the stand on Tenenbaum's behalf, the defense can do little more than attempt to poke holes in Liebowitz's conclusions, and rely on their own arguments and assertions at closing.

So when we look back on what went wrong with the defense, failing to retain an economist to testify as to the lack of harm is probably Exhibit A -- rivaled only by the decision not to settle.

UPDATE: Today after trial I asked Tenenbaum's counsel Charles Nesson why he was not able to get Oberholzer-Gee to serve as a defense expert. Nesson told me he tried, but was never able to reach his colleague across the Charles. Nesson said he never actually had any contact with Oberholzer-Gee about this case.

Here's my take on the second day of the Joel Tenenbaum trial, cross-posted from Ars Technica:

True to his word, Harvard Law's Charles Nesson brought both Styrofoam and a "Necker Cube" diagram to court for his opening statement this morning, but the real drama was just beginning. The second day of the Joel Tenenbaum file-sharing trial featured Tenenbaum's own father taking the stand, recounting how he had warned his son about P2P use as far back as 2002.

***

Joel Tenenbaum downloaded and distributed thousands of songs without paying for them, and continued to do so for years after he was sued by the major record labels for this very activity, charged Tim Reynolds, the record labels’ lead attorney, as the trial of the 25-year old physics grad student got underway in earnest today in a Boston federal courtroom.

"We are here to ask you to hold the defendant responsible for his actions," said Reynolds, a partner in the Boulder, Colorado office of Holme, Robert & Owen. "Filesharing isn't like sharing that we teach our children. This isn't sharing with your friends."

But, countered his attorney, Harvard Law School professor Charles Nesson, Tenenbaum was no different from countless others in his generation who turned to the Internet for free music when Napster made it possible back in 1999. Nesson made no effort to deny that Tenenbaum had engaged in the activity of which he stands charged as the second file-sharing defendant ever to face trial: downloading and distributing 30 songs whose copyrights are owned by the four major record labels.

"Everyone could download [songs] for free. And millions and millions did. Joel was one of those millions," he told the five men and five women of the jury, the youngest of whom appears to be about 30. "In his way he's like every other kid. There's nothing that distinctive about Joel."

Nesson’s opening statement veered at times from “statement” (permissible) into "argument" (verboten), though it was always intriguing. Nesson crumbled a Styrofoam box into hundreds of bits to illustrate albums breaking into individual songs, then displayed a poster of the now-famous "Necker Cube" optical illusion, asking the jury to consider the case from two varying perspectives.

"The truth can very typically be seen from two different points of view," said Nesson.

Tenenbaum’s hopes of letting the jury determine whether his acts of infringement constituted fair use under the Copyright Act were dashed by a last-minute order from Judge Gertner, granting the plaintiffs' motion for partial summary judgment on the fair use defense. Her order, e-mailed to the parties at 1:37am on the morning of trial, said the fair use defense proposed by Tenenbaum would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

Opening statements

Reynolds walked methodically through the evidence that, he says, proves Tenenbaum downloaded and shared the 30 songs on which the labels are seeking damages that could potentially reach $150,000 per work. Investigative firm MediaSentry detected KaZaA user "sublimeguy14@KaZaA" at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The ISP Cox Communications revealed through subpoena that 68.227.185.38 was assigned to a "J. Tenenbaum" in Providence, Rhode Island. And forensic examination of Tenenbaum's hard drive provided additional evidence that Tenenbaum used KaZaA and other peer-to-peer programs for years, even after he was served with the complaint in August 2007, said Reynolds.

But, he noted, the record labels hardly need all the forensics from MediaSentry and from Cox and from their expert, Iowa State University computer scientist Doug Jacobson, because they have something potentially better, and likely much more understandable to the jurors: Tenenbaum's own admissions at his two days of deposition that he used KaZaA to obtain music. Plaintiffs plan to call Tenenbaum to the stand, possibly as early as tomorrow.

Tenenbaum "tried to blame others for his conduct but continued to infringe long after he was caught, and even during the course of this lawsuit," said Reynolds, also the lead attorney in the recording industry’s $1.92 million victory over Jammie Thomas-Rasset in Minnesota last month. "He didn't take responsibility," and initially tried to pin blame on his friends, his sisters, a foster child living with his family, and even a "burglar."

And Tenenbaum's actions caused real harm, contended Reynolds. "The exact amount of harm is incapable of exact proof. But make no mistake about it: defendant's activities caused significant harm." Illegal downloading and distribution caused "significant lost sales, and reduced the labels’ ability to develop new artists," he said, emphasizing the impact on less-monied players in the music industry, including studio engineers and backup musicians.

Nesson's opening statement told a completely different story, of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available. "They listen to music with the technology available, and enjoy it with the technology available," he said of the "digital natives" studied by John Palfrey, the Harvard Law School professor whose proposed expert testimony Judge Gertner excluded as irrelevant.

And Tenenbaum doesn't bear responsibility for the music industry's problems of the past decade. “The Internet was not Joel’s fault. Joel did not make the Internet,” said Nesson. Referencing the sudden availability of "free bits" on the Internet, he said, "If you’re in the desert and it starts to rain, you need a new business."

First witnesses

The first witness called by the plaintiffs was Sony Music Entertainment Deputy General Counsel Wade Leak, who educated the jury on the basic functions of a record label, from A&R to connecting artists with producers to radio promotion to physical and digital sales. Leak also served as the vehicle for introduction of the copyright registrations of Sony's works, and identified the song "Pardon Me" by Incubus, which was played to the courtroom with no apparent reaction from the jury or Judge Gertner, whose musical tastes remain a mystery.

Leak also testified as to the harm allegedly caused by peer-to-peer use to his company, stating that the number of Sony Music employees has dropped by half since 2000, a body count he attributed in large part to piracy. (Plaintiffs plan to bolster their evidence of economic harm with testimony from University of Texas economist Stanley Liebowitz, an expert on the economic effects of copyright infringement. Tenenbaum has no economic expert, and Judge Gertner has barred his computer expert Dr. Johan Pouwelse from opining on economic and business issues.)

Nesson’s cross-examination of Leak was lengthy, and interrupted by frequent objections by plaintiffs' attorney Matthew Oppenheim, most of which were sustained. Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

On substance, Nesson tried to get Leak to admit that Tenenbaum did not fit into the category of the worst of copyright infringers: he was not a criminal infringer and not a member of a "release group" who originally seeded the KaZaA network with unauthorized copies of songs. Instead, Tenenbaum was just "one more…bit of dust in the wind" whose KaZaA use had no significant effect on the availability of the songs at issue.

Nesson also tried, without success, to get Leak to say how much the plaintiffs were seeking in damages from Tenenbaum. "We are leaving that determination for the jury's discretion," said Leak, who testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate.

Mark Matteo of Cox Communications' security department testified about the process of linking the IP address identified by MediaSentry with the account held by "J. Tenenbaum" of Providence, RI. Nesson’s cross reminded the jury that the first initial "J" belongs to Judith Tenenbaum as well as Joel.

MediaSentry's staccato-talking anti-piracy cop Chris Connelly took the stand to describe how the company's automated software detected "sublimeguy14@KaZaA” at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The New Jerseyan confidently defended his company's accuracy: “There has been a zero error rate.”

But he acknowledged that MediaSentry cannot detect transfers from one peer to another, and thus does not have direct proof that 68.227.185.38 distributed files to any specific KaZaA users other than to MediaSentry itself, which downloaded five complete files from sublimeguy14@KaZaA for purposes of this litigation.

Plaintiffs briefly called to the stand Joel's high school friend James Chappel, whom Tenenbaum had previously identified as someone who had used his computer, possibly to download music. Chappel testified that he had used the computer in Joel's bedroom several times, but never to download music on KaZaA or otherwise.

Joel's father, psychiatrist Dr. Arthur Tenenbaum, was the last live witness of the day. He confirmed his son's musical tastes (they once listened together to the Fugees' "Killing me Softly," one of the 30 songs at issue in this case) and testified as to the computers at use in the family home. He recounted Joel demonstrating KaZaA for him at the bedroom computer. And, perhaps most damning, he testified that he called his son at college in 2002 to warn—quite prophetically—that Joel might get sued because of his p2p use. "You only get sued if you do it a lot," Joel responded.

The day concluded with a law firm associate reading deposition testimony from Joel's two sisters, Tova and Abigail. Joel testified during his deposition that both might have used KaZaA on the computer in his bedroom, but in their own subsequent depositions, both denied it.

Tomorrow will feature more denials from friends and acquaintances who Joel had suggested may have used his computer to download music. Other scheduled witnesses include label attorneys JoAn Cho of Universal and Silda Palerm of Warner, plaintiffs' computer forensics evidence Dr. Douglas Jacobson, and Joel Tenenbaum himself. Plaintiffs have indicated they hope to wrap up their case sometime Thursday morning, which will leave the defense little time for its own presentation if the jury is to receive the case by Friday, as per the schedule set by Judge Gertner.

The Joel Tenenbaum opens today at 9am with opening statements. Plaintiffs asked for 20-30 minutes, defense counsel Charles Nesson for 40. Nesson's presentation promises to be unusual; yesterday he gave a preview of the demonstratives he plans to display to the jury, which include a Styrofoam box that he will use "to show the difference between atoms and bits, which is central to our case," as well as a poster of a "Necker Cube," whose relevance to this case remains a mystery.

After opening statements, plaintiffs will put on their first three witnesses: Sony attorney Wade Leak (who famously testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate), Chris Connelly of MediaSentry, and Mark Matteo of Cox Communications, Tenenbaum's ISP.

Monday, July 27, 2009

Nextgov.com reports that Victoria Espinel remains the frontrunner for the job as the first-ever White House Intellectual Property Enforcement Coordinator -- better known as the "IP czar":

Getting the IP enforcement coordinator in place has proven even more difficult despite the fact that the top candidate has been known for months. Victoria Espinel, who served as the first assistant trade representative for IP, a position created by former Trade Representative Susan Schwab in 2006, is ready to report for duty, sources said. The dilemma has been where to put her.

Unlike the cyber czar, the IP coordinator is a Senate-confirmed post, and White House Chief of Staff Emanuel has reportedly ruled out placement within the Domestic Policy Council, National Economic Council or National Security Council. The remaining options are establishing a stand-alone office or having the official housed within the USTR, OMB or Office of Science and Technology Policy -- and each could pose problems.

The IP zar slot was created by the PRO-IP Act, which was enacted last year with overwhelming bi-partisant support and signed into law by then-President Bush. During the 2008 campaign, Candidate Obama complained that "President Bush has failed to address the fact that...China fails to enforce U.S. copyrights and trademarks" and promised that "Barack Obama and Joe Biden will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere." Yet more than six months in to the Obama Administration, still no IP czar.

Tenenbaum's hopes of letting the jury determine whether his acts of alleged infringement constituted fair use under the Copyright Act were dashed by an order e-mailed to the parties this morning at 1:37 am, granting the record label plaintiffs' motion for partial summary judgment on the fair use defense. Judge Gertner’s order, handed down less than eight hours before trial got under way, said the fair use defense proposed by Tenenbaum failed because it would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

The court's sound rejection of the fair use defense leaves Team Tenenbaum with an extremely steep uphill climb on the basic issue of whether he will be found liable for committing the acts of copyright infringement of which he stands accused, namely downloading and sharing thirty songs using the KaZaA peer-to-peer network.

Tenenbaum has repeatedly admitted, including under oath at his two days of deposition, that he used KaZaA to download and share songs, and the record labels have mountains of evidence to confirm what Tenenbaum admits: testimony and computer forensic evidence from MediaSentry (anti-piracy investigators retained by the plaintiffs), Cox Communications (Tenenbaum’s ISP on August 10, 2004, the date of the detected sharing), and their expert, Dr. Douglas Jacobson of Iowa State University. Indeed, given Tenenbaum’s own admissions, Judge Gertner questioned today whether the MediaSentry testimony was even needed for the plaintiffs to prove Tenenbaum’s infringement.

The real action will be in determining the amount of damages, which could range from a low of $750 per work all the way up to $150,000 per work—potentially $4.5 million—in the case of willful infringement. Judge Gertner said again today that, should the jury award statutory damages, she intends to hold a separate post-trial hearing to determine whether any such award is so excessive as to violate the US Constitution's guarantee of due process of the law.

Day of torture

Nearly the entire day was consumed with what Gertner termed "one very long, very tortured day of jury selection." It started with jurors filling out forms asking basic biographical information, as well as their, and their friends' and family members', experiences with the use of peer-to-peer software like KaZaA and Limewire to obtain and distribute music. After the attorneys had the chance to sift through the completed forms, the judge, attorneys, clerks, and spectators all moved to the adjacent courtroom, while the potential jurors waited in the original courtroom to be called next door for their seriatim grillings by each side, as well as by Judge Gertner herself.

The questions from label attorney Matt Oppenheim were conventional: "Do you have an opinion about record companies?" "Have you heard about the record companies' suits against individuals accused of copyright infringement?" "Do you believe they are justified in enforcing their rights against those who infringe their works on the Internet?"

The questions from Tenenbaum's lead counsel, Harvard Law School professor Charles Nesson, were, to no one's surprise... not so conventional. Nesson began his questioning of many of them by asking whether they were "offended" by his decision to wear a Steve Jobs-esque black turtleneck (with blazer) in lieu of a business suit. "I’m a teacher in my normal life," explained Nesson. "This is what I wear every day."

Nesson also questioned potential jurors about their views on marijuana decriminalization, even asking one woman how she would feel if she heard during the trial about Nesson's own (admitted) pot-smoking. She said she didn’t mind, though Judge Gertner quickly made clear that the trial would not delve into that subject.

The parties sparred repeatedly about whether the half-dozen or so potential jurors who admitted to using peer-to-peer networks to obtain music without paying for it should be excluded from the jury for cause. Judge Gertner repeatedly sided with the plaintiffs, who objected to the presence on the jury of those who essentially admitted to the same activity of which Tenenbaum, a 25-year-old Boston University graduate student, stands accused. Nesson complained that removing such p2p users from the juror pool deprived Tenenbaum of his constitutionally guaranteed right to a trial by a jury of his peers.

"By doing that, she excluded a whole generation," Nesson lamented in a post-voir dire interview. But, he added, "I think this is a jury I can talk to."

Also excluded from the jury was the labels' worst nightmare: a 40-ish woman who had done graduate studies in theology and library sciences and said she "definitely ha[s] a bias against record companies. Information should be free." Team Tenenbaum was also able to toss its least-favorite juror: a 60-ish man who proclaimed that "downloading music is almost like stealing," and added, "If you go on the Internet and get it, you should have to pay for it." Nesson accused him of "bias," and Judge Gertner—over the objection of plaintiffs' counsel, who argued that the man was stating nothing more than that people should obey the law—expressed concern about the "moral opprobrium" he was attaching to copyright infringement.

The process ultimately resulted in a jury of five men and five women, all drawn from Boston's suburbs. According to a list provided by the court (following a friendly in-chambers conference among Judge Gertner, counsel from both sides, and your humble correspondent), the jury consists of the following:

Certified nurse assistant; F; Somerset

Pet trainer/secretary; F; Plymouth

Physician; M; Wayland

Bank administrator; F; Quincy

Registered nurse; F; Westford

Plant quality assurance manager; F; Mansfield

Associate director; M; Milton

Salesman; M; Milton

Medicinal Chemist; M; Wakefield;

Business development manager; M; Tewksbury

Exploding Styrofoam and Necker Cubes

Opening statements begin Tuesday morning at 9:00 am. Plaintiffs asked for 20-30 minutes, Nesson for 40. Nesson gave a brief preview of his opening, at which he plans to use demonstratives, including a Styrofoam box that he said will be used "to show the difference between atoms and bits, which is central to our case."

"We will object to the exploding Styrofoam," deadpanned plaintiffs' attorney Tim Reynolds, though his plea was rejected by Judge Gertner, even as she cautioned Nesson that this was to be an opening statement, not an argument. Nesson also said he plans to display a poster of a “Necker Cube." Asked why, he would only say, "Tune in tomorrow."

And we shall, to hear opening statements and the plaintiffs' first three witnesses: Sony attorney Wade Leak (who famously testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate), Chris Connelly of MediaSentry, and Mark Matteo of Cox Communications.

Judge Gertner promised that the jury would get the case by Friday, though deliberations could potentially stretch into next week.

In a devastating blow to Joel Tenenbaum's trial prospects handed down only hours before the start of trial, Judge Nancy Gertner at 1:37 a.m. this morning issued an order granting the record label plaintiffs' motion for partial summary judgment on his fair use defense. Fair use is now completely gone from the case, and with it Tenenbaum's primary defense to the labels' claims that he downloaded and "shared" 30 songs. While the court suggests in its order that some of the evidence related to fair use may still come in to mitigate damages, the jury will not be permitted to consider fair use itself.

Here's Judge Gertner's order, which soundly rejects the defense and states that she will issue a full opinion later:

Judge Nancy Gertner: Electronic ORDER entered granting [871] Motion for Partial Summary Judgment on Defendant's Fair Use Defense: The Plaintiffs' Motion for Partial Summary Judgment [871] is GRANTED, with a full opinion to follow. Defendant Tenenbaum has asserted a fair use defense to the allegations of copyright infringement in this case, a question on which the Plaintiffs seek summary judgment. At summary judgment, a court considers whether sufficient facts have been established to warrant a decision as a matter of law. If material facts are in genuine dispute, the question must go to a jury; if they are not, the Court must determine the legal consequences of the uncontested facts. The Seventh Amendment does not guarantee the right to a jury trial on every issue, only those that turn on reasonably disputed facts. See Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006). The Defendant has the burden of identifying the disputed facts, see Fed. R. Civ. P. 56(c), (e), a burden which "requires hard proof rather than spongy rhetoric. Kearney v. Town of Wareham, 316 F.3d 18, 22 (1st Cir. 2002). Tenenbaum has not met that burden. He proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment. See Acuff-Rose, 510 U.S. at 584 ("[T]he mere fact that a use is not for profit does not insulate it from a finding of infringement."). Likewise, his demand for a jury determination on this issue appears all but standardless; "fair use" would, in effect, be any use whatsoever that a jury deemed fair. In the end, fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation that Congress established in the Copyright Act. See also Const.Art. I, Sec. 8, cl. 8. Tenenbaum makes no effort to fit his alleged file-sharing into this framework, no claim of a transformative use or public benefit sufficient to justify an exception to copyright protections. Sony Corp., 464 U.S. at 429-30. To be sure, this Court can envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense.Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant's counsel was a signatory) outlined some of those circumstances -- for example, the defendant who "deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased." See Berkman Center Br. at 37 (document # 177-3). The Court can also envision a fair use defense for a defendant who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available. The advent of the internet inthe late 1990s threw a number of norms into disarray, offering suddenaccess to a wealth of digitized media and giving the veneer of privacy oranonymity to acts that had public consequences. At the beginning of thisperiod, both law and technology were unsettled. A defendant who shared files online during this interregnum but later shifted to paid outlets once the law became clear and authorized sources available would present a strong case for fair use. It might matter, too, who the defendant shared files with -- his friends, or the world -- as well as how many copyrighted works, and for how long. See Sony Corp. v. Universal City Studios, Inc.,464 U.S. 417, 451 n.34 (1984). But the Defendant has offered no facts to suggest that he fits within these categories. He is accused of sharing hundreds of songs over a numberof years, far beyond the infancy of this new technology or any legal uncertainty. And in his summary judgment opposition, he has contested few of the facts offered by the Plaintiffs in support of their motion. See Pl. Statement of Undisputed Facts (document # 74); Opp. to S.J. at 5-9 (document # 889). On the face of the summary judgment record -- the only record before the Court at this time -- the following details do not appear to be in genuine dispute: (1) the main purpose of Tenenbaum' s file-sharing was his own private enjoyment and that of his friends, not profit-making; (2) he downloaded entire songs, but not entire albums of music; (3) he did not transform the 30 works at issue in the sense that he added "something new, with a further purpose or a different character," Acuff-Rose, 510 U.S. at 579; (4) his file-sharing spanned more than four years and several different software platforms, both before and after this activity was detected in August 2004; and (5) at that time, his file-sharing software made more than 800 songs available to other KazaA users to download. See Pl. Statement of Undisputed Facts at 1-4, 6. The only fair use factor on which the Defendant raises a serious factual challenge is the effect of his file-sharing on the potential market for or value of the copyrighted works, see 17 U.S.C. 107(4), in which he argues that file-sharing has not diminished the record companies' revenues nor curtailed overall artistic creation. But here again, Tenenbaum has put no facts into evidence on which the Court could rely; his opposition briefsare not accompanied by any affidavit, expert report, deposition testimony,or other evidence of the kind described by Rule 56(e). Even more, the Court is bound to look at the market for the specific works identified by Plaintiffs and as to this market, a court must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant... would result in a substantially adverse impact on thepotential market for the original." Campbell v. Acuff-Rose Music, Inc., 510U.S. 569, 590 (1994) (quoting Nimmer ? 13.05[A][4]). Plaintiffs have argued that continuous, high-volume file-sharing -- offering exact duplicates to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works. The Defendant has offered no facts to the contrary. While the Court recognizes that not every unauthorized download would represent a lost sale, it seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use. Based on this finding, the private purpose of this use, the substantiality and lack of transformation, and those additional factors the Court is entitled to consider, the Court holds that Tenenbaum's alleged infringement was not a fair use. See Hustler Magazine, Inc. v.Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986); A&M Records, Inc.v. Napster, Inc., 239 F.3d 1004, 1012-19 (2001). Accordingly, thePlaintiffs' Motion for Partial Summary Judgment on fair use is GRANTED. Afull opinion by the Court shall follow. Finally, to the extent that the Defendant's fair use arguments are also relevant to any damages determination under 17 U.S.C. 504(c), he shall have the opportunity to present them to the jury at trial. (Gertner, Nancy)

Sunday, July 26, 2009

The trial of accused peer-to-peer infringer Joel Tenenbaum is set to get underway July 27 in Boston. Below are some frequently asked questions, which I will update as events warrant. I've been up front about the fact that I'm sympathetic toward the plaintiffs, but I've tried to play it straight in these FAQs.

What's the case in a nutshell?Five major record labels have sued a Boston University graduate student named Joel Tenenbaum in federal court in Boston, alleging that he used the KaZaA peer-to-peer network to infringe copyrights in 30 sound recordings that they own. This is only the second of about 18,000 similar cases against individual accused p2p users to have made it all the way to trial.

Who is the defendant?Joel Tenenbaum is a 25-year-old graduate student in physics at Boston University. He attended high school in Providence, Rhode Island, and then Goucher College in Baltimore.

What about the RIAA? Isn't it suing Tenenbaum?The Recording Industry Association of America is a trade association that represents the major record labels, including the plaintiffs in this case. The RIAA has not sued Tenenbaum, and it is not a party to the case. The RIAA does play a coordinating role in this and similar cases, though it is ultimately up to the plaintiffs themselves (all RIAA members) to make the decisions regarding the case. Tenenbaum attempted to sue the RIAA for abuse of process, but the court ruled that his claim failed as a matter of law.

Who is the judge?Nancy Gertner, of the U.S. District Court for the District of Massachusetts. Judge Gertner was appointed to the federal bench by President Clinton in 1993, after a career in private practice as a criminal defense and civil rights attorney. Judge Gertner is known as an outspokenliberal. She had a short-lived blog, and was once forced off a high-profile case by the First Circuit after writing a letter to the editor and granting an interview to the Boston Herald. Judge Gertner is married to John Reinstein, legal director of the Massachusetts ACLU, which has weighed in against the record labels in similar cases.

Several times Judge Gertner has signaled that she disapproves of the record labels' decision to sue Tenenbaum and other individual defendants. In June 2008, speaking generally of these lawsuits, she said to plaintiffs' counsel, "it's terribly critical that you stop it." More recently, she indicated that she "views file-sharing lawsuits as unwise and the statutory penalties a remarkably poor policy judgment" (she used the word "if" before that statement, but from the context it seems clear that she was expressing her own views).

Who are the lawyers?The lead attorney for the plaintiffs is Timothy Reynolds, a partner in the Boulder, Colorado office of Holme, Roberts & Owen; HRO's Eve Burton has also played a prominent role. Daniel Cloherty of Dwyer & Collora is local counsel and has also been heavily involved. (Judge Gertner was formerly a partner at Dwyer & Collora, though she left several years before Cloherty joined the firm). Other key lawyers on the plaintiffs' side include Matt Oppenheim of the Oppenheim Group and RIAA Senior Vice President of Litigation Jennifer Pariser. Reynolds, Oppenheim, and Pariser just prevailed in the very similar Jammie Thomas-Rasset case in Minnesota in June.

Harvard Law School Professor Charles Nesson is Tenenbaum's lead counsel. Ubiquitously described as "brilliant and eccentric," Nesson has taught at Harvard for over 40 years, with an academic focus on evidence. He is co-founder of the Berkman Center for Internet & Society, a research center that is often critical of copyright owners and their efforts to enforce their rights. Nesson has had a team of law students assisting him (though the team has shrunk to one), and has brought in experienced Boston litigator Matthew Feingold as "special mentor." Kiwi Camara of Houston's Camara & Sibley, who defended Jammie Thomas-Rasset at a similar trial in Minnesota in June, has also filed a brief on behalf of Tenenbaum.

Why has Nesson generated so much controversy?His litigation tactics have been highly unusual, earning him multiple rebukes from Judge Gertner (who recruited him to represent Tenenbaum pro bono). For example, Nesson has:

Why is this case important?Several reasons. Perhaps most important is PR -- or, legally speaking, deterrence. If the plaintiffs win, they will herald it as proof that their litigation campaign against individual p2p users was successful in demonstrating to the world that use of p2p networks to download and "share" music without permission or payment is illegal, and has serious consequences. If Tenenbaum wins, it will be a major PR back eye for the record labels, and will be cited as evidence that the litigation strategy was an expensive failure that succeeded mainly in alienating consumers. Various rulings by the court, including on the fair use defense and possible constitutional limits on statutory damages, may set important legal precedent.

What is Tenenbaum accused of doing?The plaintiffs have alleged that Thomas willfully violated their exclusive rights to reproduce and distribute 30 sound recordings by downloading them and distributing them to others over the KaZaA network. See 17 U.S.C. § 106(1) & (3). The 30 songs are listed here and here.

How much are the plaintiffs asking for in damages?The plaintiffs have elected to seek statutory damages, which the jury can award in an amount between $750 and $30,000 per work, or up to $150,000 per work (a total of $4.5 million for 30 works) if they find that the infringement was willful. 17 U.S.C. § 504(c). The labels have not indicated that they will ask for a specific amount within that range. At the two Jammie Thomas-Rasset trials, the labels did not ask for a specific amount; at the first trial the jury awarded $9,250 per work, and $80,000 at the second.

On August 10, 2004, at 12:49 a.m. EDT, MediaSentry, a company retained by Plaintiffs, detected an individual with the username “sublimeguy14@KaZaA” at Internet Protocol (“IP”) address 68.227.185.38 using the KaZaA online file sharing program to distribute Plaintiffs’ copyrighted sound recordings.... This person was distributing 816 digital audio files from a “shared” folder on his computer to millions of other users on the KaZaA network.

MediaSentry recorded this information and downloaded certain of the songs. Cox Communications, the ISP associated with this IP address, has stated that the address was assigned to "J. Tenenbaum" on the date in question. A later search of Tenenbaum's computer confirmed his use of KaZaA and other p2p software through 2007, and possibly 2008. This will all be explained by a representative from MediaSentry and their expert, Dr. Doug Jacobson of Iowa State University. Here's the plaintiffs' Pretrial Memorandum, which summarizes their evidence and arguments.

What is Tenenbaum's defense?Tenenbaum repeatedly admitted under oath at his depositions that he used KaZaA to download and share songs. While there may be some dispute about what exactly he admitted to (he has said he doesn't remember all of the details), it's clear that his defense is not "I didn't do it." Tenenbaum's primary legal defense is fair use. Fair use is an affirmative defense to an allegation of copyright infringement, just as self-defense is an affirmative defense to a charge of murder; the defendant essentially says, "Yes, I did it, but I was justified in doing so." On the eve of trial, it is still not known whether the jury will be permitted to consider Tenenbaum's fair use defense. The record labels have moved for partial summary judgment on his fair use defense, but, as of the night before trial, she has yet to rule. Two appellate courts have considered fair use defense in the p2p context; both rejected it. See A&M Records v. Napster and BMG Music v. Gonzalez. [UPDATE: the court granted the plaintiffs' motion for summary judgment on the fair use defense at 1:37 a.m. on the day of trial. Fair use is out of the case.]The other primary argument Tenenbaum has made is that his actions did not cause significant (if any) harm to the plaintiffs. I expect his defense to press this issue at trial (though an award of statutory damages does not require a showing of actual harm), and, if there is a verdict and an award of damages, Tenenbaum will argue that the damages are unconstitutionally excessive.How long will the trial last?Judge Gertner has told the attorneys that she intends for the trial to be wrapped up by this Friday, July 31.

Where can I read the various documents in the case?Most (but not all) are here or here. All are available -- for a fee of $.08 per page -- through PACER.

What's your prediction? Who will win?Based on the facts and the law, and the weaknesses in Tenenbaum's defense, I think it's most likely that the plaintiffs will win. However, this is a jury trial, and juries are unpredictable. It is not inconceivable that the jury will be sympathetic toward Tenenbaum, whom the defense will portray as a victim of large companies' abusive litigation strategy. It's also clear that Judge Gertner is not inclined toward the plaintiffs, so it will bear watching whether she signals her views to the jury.

How is this case different from the Jammie Thomas-Rasset case?Jammie Thomas-Rasset is a Minnesota woman who stood trial in June on similar allegations (actually for the second time). The jury found for the plaintiffs and awarded $80,000 per song, for a total of $1.92 million. Thomas-Rasset steadfastly denied ever downloading or sharing songs over the Internet. Her defense was simple: "I didn't do it." (At trial, she suggested that her ex-boyfriend or kids may have been the actual culprits.) In contrast, Tenenbaum does not deny using KaZaA to obtain songs; rather, he says he was justified in doing so, and that his actions did not harm the plaintiffs. Tenenbaum's admissions may render the plaintiffs' forensic computer evidence from MediaSentry and their expert Dr. Jacobson somewhat less important, again because there is no real dispute whether Tenenbaum downloaded and "shared" the songs at issue. I therefore expect this trial to focus more on the issue of harm.

Late Sunday the court issued an order granting the record label plaintiffs' motion to exclude Harvard Law School professor John Palfrey as a defense expert for Joel Tenenbaum, ruling that his opinions about "digital natives" are irrelevant to the case. Tenenbaum did not file an opposition to the motion. Tenenbaum's counsel Charles Nesson called the ruling "devastating."

Judge Nancy Gertner: Electronic ORDER entered granting [888] Motion in Limine with regard to the expert witness, John Palfrey: Defendant has designated John Palfrey as an expert witness in this case. Palfrey proposes to testify about a) how children understand fair use, and how that understanding has changed over time; b) the characteristics of "digital natives" and their practices and discourses surrounding creativity and copyright; c) the importance, in educating children, of communicating principles of behavior which they can understand. Plaintiffs have challenged both the relevance of Palfreys testimony and, under Daubert, his qualifications to offer the opinions contained in his proposed testimony.I do not agree with Plaintiffs challenge to Palfreys qualifications, at least as to (b) and to a lesser extent, (a). Palfrey has conducted and published a study of the internet generation (so-called digital natives") and their attitudes towards creativity and copyright; in effect, he seeks to testify about his research. He is well qualified to speak about the areas which he has studied and the data it has generated.The problem, however, is one of relevance. Palfrey is not offering, and expressly disclaims, any intent to testify about fair use -- the defense that would excuse Tenenbaum's allegedly infringing conduct. Palfrey's deposition made this clear: When asked about the relationship between his research, copyright law, and the use of the internet to obtain copyrighted works, he said I dont have the first idea. When asked whether he was suggesting different norms of infringement should be applied to digital natives in contrast to others (Plaintiffs counsel described them as mere mortals), he answered, I am not.Presumably, then, Palfrey's testimony is offered on the question of whether Tenenbaum's alleged infringement and the damages that accrue from it, but even in that regard it is flawed: Palfrey concedes that the general observations of his work -- which are quite interesting and important, and may well be helpful for policymakers -- do not apply to the Defendant in this case. Even assuming that this testimony bears on the question of whether infringement, if found by a jury, was willful, Palfrey does not claim that Tenenbaum is an example of the individuals he has studied. When asked whether the observations he obtained from focus groups and his study can be applied to Tenenbaum, he stated: I make no claim whatsoever on that score. When asked if he could claim that the conclusion in his report applies to Tenenbaum, he stated I cannot." When asked whether his research bears on the question of whether Tenenbaum should have understood that what he was doing was illegal, he noted: I dont," and added, I dont think my survey speaks to that in any meaningful way. Nor is there another witness who would link Palfreys general observations to Tenenbaum or the pattern of his conduct in this case. Accordingly, Palfrey's testimony is EXCLUDED. (Gertner, Nancy)

Friday, July 24, 2009

The US Supreme Court has denied Joel Tenenbaum's request that it stay his trial until the full Court can consider his plea that it "suspend" the District of Massachusetts local rule prohibiting courtroom broadcasts. Tenenbaum has fought an ultimately unsuccessful battle to have his closely-watched copyright trial, which starts Monday in federal court in Boston, live-streamed on the Internet for public viewing.

Judge Nancy Gertner: Electronic ORDER entered granting [896] Motion in Limine with respect to Felix Oberholzer-Gee, who has been proposed as an expert only days before trial without any expert report offered whatsoever. (Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered. The Defendant argues in his proposed jury instructions that the Plaintiffs should be limited to proving infringement of 5 recordings at trial, listed in Exhibit A to the Complaint, rather than the 30 songs for which they now intend to show copyright violations at trial, the remainder of which appeared in Exhibit B. While ordinarily the Court does not address jury instructions at the outset of the case, this issue is different since it may bear on defendants overall strategy. Defendant does not suggest that the Plaintiffs were required to formally amend the Complaint (beyond noting the songs in Exhibit B to the complaint). Nor does he deny that the Defendant received notice of the Plaintiffs' intent to proceed on these 30 recordings via an amended Rule 26 disclosure as early as October 2008. Counsel simply says that he "missed" the disclosure, that it was not publicly reviewable (because it was part of discovery exchanged between the parties as the Rules permit) and that the Plaintiffs should not be permitted to pick the number of infringements they want to prove. This objection simply does not provide a basis for barring claims of which the Defendant had notice and which are appropriate for trial given the facts and allegations now before the Court. Alternatively, Tenenbaum suggests that, if anything, he should be found liable for only one act of infringement because his "non-commercial" file-sharing constitutes a single course of conduct subjecting him, at most, to a single penalty regardless of how many copyrighted works he shared or over what period. This interpretation is not supported by the language of 17 U.S.C. 504(c)(1). As Defendant concedes, it reads the law's clear provision for penalties "with respect to any one work" out of the statute altogether, in order to satisfy the Defendant's sense of "logic" and "proportion." Id. While the Court may agree that the copyright law is gravely out of proportion, the Defendant's logic is not Congress' logic. Trial will go forward on the 30 sound recordings for which the Plaintiffs provided notice to the Defendant.(Gertner, Nancy)

Judge Gertner also reaffirmed that Brandeis University ethnomusicologist Wayne Marshall (Tenenbaum counsel Charles Nesson's son-in-law) will not be permitted to testify as an expert, though she reserved judgment whether he will be permitted to testify as a fact witness and said he may help run courtroom demonstrations:

Judge Nancy Gertner: Electronic ORDER entered. Defendant's Motion for Reconsideration of the Court's ruling excluding Wayne Marshall as an expert, made orally at Monday's conference, is DENIED. Marshall was proposed as an expert on June 29, 2009 -- months after the Defendant first proposed adding his fair use defense (April 15), a month after the original deadline for expert disclosures (May 30), weeks after the Court allowed addition of the fair use defense (June 15), and a week after the strict deadline for submission of expert reports (June 22). See June 16, 2009 Scheduling Order (setting strict schedule for fair use discovery and cautioning Defendant that further failures to meet the Court's time-limits could cause him to forfeit crucial elements of his case). The Defendant's only explanation for his delay is that the proposed expert did not realize earlier how his expertise would be relevant to this case. As before, this reason does not warrant an exception to the extremely tight calendar dictated by the July 27 trial date, agreed to by both sides. Marshall is also listed as a "fact" witness in the pretrial memorandum, and as someone who will be demonstrating file-sharing to the jury. The Court will allow Marshall to demonstrate the technology. As to any "fact" testimony beyond that demonstration, the Court will reserve judgment. (Gertner, Nancy)

Follow me on Twitter

Subscribe by email

Subscribe via RSS

About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

"From the dark side...prolific...interesting reads...insightful commentary you can’t find other places in the blogosphere...a just plain good read...the copyright equivalent of Grand Moff Tarkin." -- Arbitrary and Fanciful